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EXHIBIT 4.29
FORM OF STOCK
PURCHASE CONTRACT AGREEMENT
ALLIED WASTE INDUSTRIES, INC.
AND
[PURCHASE CONTRACT AGENT]
DATED AS OF _______________________________
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND
OTHER PROVISIONS OF GENERAL APPLICATION .............. 1
Section 1.01.
Definitions ......................................... 1
Section 1.02.
Compliance
Certificates and Opinions ................ 5
Section 1.03.
Form of
Documents Delivered to Agent ................ 5
Section 1.04.
Acts of
Holders; Record Dates ....................... 6
Section 1.05.
Notices,
etc., to Agent and the Company ............. 7
Section 1.06.
Notice to
Holders; Waiver ........................... 7
Section 1.07.
Effect of
Headings and Table of Contents ............ 7
Section 1.08.
Successors
and Assigns .............................. 7
Section 1.09.
Separability Clause ................................. 7
Section 1.10.
Benefits
of Agreement ............................... 7
Section 1.11.
Governing
Law ....................................... 8
Section 1.12.
Legal
Holidays ...................................... 8
Section 1.13.
Counterparts ........................................ 8
Section 1.14.
Inspection
of Agreement ............................. 8
ARTICLE TWO
SECURITY
CERTIFICATE FORMS ...........................................
8
Section 2.01.
Forms of
Security Certificates Generally ............ 8
Section 2.02.
Form of
Agent's Certificate of Authentication ....... 8
ARTICLE THREE
THE SECURITIES
.......................................................
8
Section 3.01.
Title and
Terms; Denominations ...................... 8
Section 3.02.
Rights and
Obligations Evidenced by the Security
Certificates ........................................ 9
Section 3.03.
Execution,
Authentication, Delivery and Dating ...... 9
Section 3.04.
Temporary
Security Certificates ..................... 9
Section 3.05.
Registration; Registration of Transfer and
Exchange ............................................ 10
Section 3.06.
Mutilated,
Destroyed, Lost and stolen Security
Certificates ........................................ 11
Section 3.07.
Persons
Deemed Owners ............................... 12
Section 3.08.
Cancellation ........................................ 12
Section 3.09.
Securities
Not Separable ............................ 12
ARTICLE FOUR
THE PLEDGED
SECURITIES ...............................................
13
Section 4.01.
Payment of
Distributions; Rights to Distributions
Preserved ........................................... 13
Section 4.02.
Transfer
of Pledged Securities Upon Occurrence of
Termination Event ................................... 13
ARTICLE FIVE
THE PURCHASE
CONTRACTS ...............................................
14
Section 5.01.
Purchase
of Shares of Common Stock .................. 14
Section 5.02.
Contract
Fees ....................................... 14
Section 5.03.
Deferral
of Payment Dates for Contract Fee .......... 15
Section 5.04.
Payment of
Purchase Price ........................... 15
Section 5.05.
Issuance
of Share of Common Stock ................... 15
Section 5.06.
Adjustment
of Settlement Rate ....................... 16
Section 5.07.
Notice of
Adjustments and Certain Other Events ...... 19
Section 5.08.
Termination Event; Notice ........................... 19
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Section 5.09.
Early
Settlement .................................... 20
Section 5.10.
No
Fractional Shares ................................ 20
Section 5.11.
Charges
and Taxes ................................... 21
ARTTCLE SIX
REMEDIES
.............................................................
21
Section 6.01.
Unconditional Right of Holders to Receive Contract
Fee ................................................. 21
Section 6.02.
Restoration of Rights and Remedies .................. 21
Section 6.03.
Rights and
Remedies Cumulative ...................... 21
Section 6.04.
Delay or
Omission Not Waiver ........................ 21
Section 6.05.
Undertaking for Costs ............................... 21
ARTICLE SEVEN
THE AGENT
............................................................
22
Section 7.01.
Certain
Duties and Responsibilities ................. 22
Section 7.02.
Notice of
Default ................................... 22
Section 7.03.
Certain
Rights of Agent ............................. 23
Section 7.04.
Not
Responsible for Recitals or Issuance of
Securities .......................................... 23
Section 7.05.
May Hold
Securities ................................. 23
Section 7.06.
Money Held
in Trust ................................. 23
Section 7.07.
Compensation and Reimbursement ...................... 23
Section 7.08.
Corporate
Agent Required; Eligibility ............... 24
Section 7.09.
Resignation and Removal; Appointment of Successor ... 24
Section 7.10.
Acceptance
of Appointment by Successor .............. 25
Section 7.11.
Merger,
Consolidation or Succession to Business ..... 25
Section 7.12.
Preservation of Information, Communications to
Holders ............................................. 25
Section 7.13.
No
Obligations of Agent ............................. 26
Section 7.14.
Tax
Compliance ...................................... 26
ARTICLE EIGHT
SUPPLEMENTAL AGREEMENTS
.............................................. 26
Section 8.01.
Supplemental Agreements Without Consent of Holders .. 26
section 8.02.
Supplemental Agreements with Consent of Holders ..... 26
Section 8.03.
Execution of Supplemental
Agreements ................ 27
Section 8.04.
Effect of
Supplemental Agreements ................... 27
Section 8.05.
Reference
to Supplemental Agreements ................ 27
ARTICLE NINE
CONSOLIDATION,
MERGER, SALE OR CONVEYANCE ............................
27
Section 9.01.
Covenant
Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions ............ 27
Section 9.02.
Rights and
Duties of Successor Corporation .......... 28
Section 9.03.
Opinion of
Counsel to Agent ......................... 28
ARTICLE TEN
COVENANTS
............................................................
28
Section 10.01.
Performance
Under Purchase Contracts ................ 28
Section 10.02.
Maintenance of
Office or Agency ..................... 28
Section 10.03.
Company to
Reserve Common Stock ..................... 28
Section 10.04.
Covenants as to
Common Stock ........................ 29
Section 10.05.
Statements of
Officers of the Company as to
Default ............................................. 29
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PURCHASE CONTRACT AGREEMENT, dated as of __________________ between
ALLIED
WASTE INDUSTRIES INC., a Delaware corporation (the "Company"), and
[PURCHASE
CONTRACT AGENT], acting as purchase contract agent for the Holders
of Securities
from time to time (the "Agent").
RECITALS
A.
The Company has duly authorized the execution and delivery of
this
Agreement and the Security Certificates evidencing the
Securities.
B.
All things necessary to make the Company's obligations under
the
Securities, when the Security Certificates are executed by the
Company and
authenticated, executed on behalf of the Holders and delivered by
the Agent, as
in this Agreement provided, the valid obligations of the Company,
and to
constitute these presents a valid agreement of the Company, in
accordance with
its terms, have been done.
WITNESSETH:
For
and in consideration of the premises and the purchase of the
Securities
by the Holders thereof, it is mutually agreed as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions. For all purposes of this Agreement,
except as
otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings assigned
to
them in this Article and include the plural as well as the
singular; and
(2) the words "herein," "hereof" and "hereunder" and other words
of
similar import refer to this Agreement as a whole and not to any
particular
Article, Section or other subdivision.
"Act" when used with respect to any Holder, has the meaning
specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly
or
indirectly controlling or controlled by or under direct or indirect
common
control with such specified Person, For the purposes of this
definition,
"control" when used with respect to any specified Person means the
power to
direct the management and policies of such Person, directly or
indirectly,
whether through the ownership of voting securities, by contract or
otherwise;
and the terms "controlling" and "controlled" have meanings
correlative to the
foregoing.
"Agent" means the Person named as the "Agent" in the first
paragraph of
this instrument until a successor Agent shall have become such
pursuant to the
applicable provisions of this Agreement, and thereafter.
"Agent" shall mean the Person who is then the Agent hereunder.
"Agreement" means this instrument as originally executed or as it
may from
time to time be supplemented or amended by one or more agreements
supplemental
hereto entered into pursuant to the applicable provisions
hereof.
"Applicable Market Value" has the meaning specified in Section
5.01.
"Board of Directors" means the board of directors of the Company or
a duly
authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of
Directors,
a copy of which has been certified by the Secretary or an Assistant
Secretary of
the Company to have been duly adopted by the Board of Directors and
to be in
full force and effect on the date of such certification and
delivered to the
Agent.
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"Business Day" means any day that is not a Saturday, Sunday or a
day on
which the NYSE or banking institutions or trust companies in the
City of New
York are authorized or obligated by law or executive order to be
closed.
"Closing Price" has the meaning specified in Section 5.01.
"Collateral Agent" means ______________________, as Collateral
Agent under
the Pledge Agreement until a successor Collateral Agent shall have
become such
pursuant to the applicable provisions of the Pledge Agreement, and
thereafter
"Collateral Agent" shall mean the Person who is then the Collateral
Agent
thereunder.
"Common Stock" means [ ]
"Company" means the Person named as the "Company" in the first
paragraph of
this instrument until a successor shall have become such, and
thereafter
"Company" shall mean such successor.
"Contract Fee" means the fee payable by the Company in respect of
each
Purchase Contract, equal to _________% per annum of the Stated
Amount, accruing
from ________________, 20__, computed on the basis of the actual
number of days
elapsed in a year of 365 or 366 days, as the case may be, plus any
additional
fees accrued pursuant to Section 5.03.
"Corporate Trust Office" means the principal office of the Agent
in
[ ],
at which at any particular time its corporate trust business shall
be
administered, which office at the date hereof is located at
[
].
"Current Market Price" has the meaning specified in Section
5.06(a)(8).
"Depositary" means a clearing agency registered under the Exchange
Act that
is designated to act as Depositary for the Securities as
contemplated by Section
3.05.
"Early Settlement" has the meaning specified in Section
5.09(a).
"Early Settlement Amount" has the meaning specified in Section
5.09(a).
"Early Settlement Date" has the meaning specified in Section
5.09(a).
"Early Settlement Rate" has the meaning specified in Section
5.09(b)
"Exchange Act" means the Securities Act of 1934 and any statute
successor
thereto, in each case as amended from time to time.
"Excess Pledged Securities" has the meaning specified in Section
4.02.
"Expiration Date" has the meaning specified in Section 1.04.
"Expiration Time" has the meaning specified in Section
5.06(a)(6).
"Final Settlement Date" means ______________________, 20__.
"Final Settlement Fund" has the meaning specified in Section
5.05.
"Global Security Certificate" means a Security Certificate that
evidences
all or part of the Securities and is registered in the name of a
Depositary or a
nominee thereof.
"Holder," when used with respect to a Security Certificate (or a
Security),
means a Person in whose name the Security evidenced by such
Security Certificate
(or the Security Certificate evidencing such Security) is
registered in the
Security Register.
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"Issuer Order" or "Issuer Request" means a written order or request
signed
in the name of the Company by its Chairperson of the Board, any
Vice
Chairperson, its President or a Vice President and by its
Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to
the Agent.
"NYSE" has the meaning specified in Section 5.01.
"Officer's Certificate" means a certificate signed by the
Chairperson of
the Board, any Vice Chairperson, the President or any Vice
President and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of
the Company and delivered to the Agent.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel,
who may be an employee of or counsel to the Company.
"Outstanding Securities" means, as of the date of determination,
all
Securities evidenced by then Outstanding Security Certificates,
except:
(i) If a Termination Event has occurred, Securities for which
the
underlying Pledged Securities have been theretofore deposited with
the
Agent in trust for the Holders of such Securities; and
(ii) On and after the applicable Early Settlement Date, Securities
as
to
which the Holder has elected to effect Early Termination of the
related
Purchase Contracts; provided, however, that in determining whether
the
Holders of the requisite number of Securities have given any
request,
demand, authorization, direction, notice, consent or waiver
hereunder,
Securities owned by the Company or any Affiliate of the Company
shall be
disregarded and deemed not to be outstanding, except that, in
determining
whether the Agent shall be protected in relying upon any such
request,
demand, authorization, direction, notice, consent or waiver,
only
Securities which the Agent knows to be so owned shall be so
disregarded.
Securities so owned which have been pledged in good faith may be
regarded
as
outstanding if the pledgee establishes to the satisfaction of the
Agent
the
pledgee's right so to act with respect to such Securities and that
the
pledgee is not the Company or any Affiliate of the Company.
"Outstanding Security Certificates" means, as of the date of
determination,
all Security Certificates theretofore authenticated, executed and
delivered
under this Agreement, except:
(i) Security Certificates theretofore cancelled by the Agent or
delivered to the Agent for cancellation; and
(ii) Security Certificates in exchange for or in lieu of which
other
Security Certificates have been authenticated, executed on behalf
of the
Holder and delivered pursuant to this Agreement, other than any
such
Security Certificate in respect of which there shall have been
presented to
the
Agent proof satisfactory to it that such Security Certificate is
held
by a
bona fide purchaser in whose hands the Securities evidenced by
such
Security Certificate are valid obligations of the Company.
"Payment Date" means each ____________ and _____________,
commencing
______________, 20__.
"Persons" means any individual, corporation, limited liability
company,
partnership, joint venture, association, joint stock company,
trust,
unincorporated organization or government or any agency or
political subdivision
thereof.
"Pledge" means the pledge under the Pledge Agreement of the
Pledged
Securities constituting a part of the Securities.
"Pledge Agreement" means the Pledge Agreement, in the form of
Exhibit B,
dated as of the date hereof, among the Company, the Collateral
Agent and the
Agent, on its own behalf and as attorney-in-fact for the Holders
from time to
time of the Securities.
"Pledged Securities" means _____________.
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"Predecessor Security Certificate" of any particular Security
Certificate
means every previous Security Certificate evidencing all or a
portion of the
rights and obligations of the Holder under the Securities evidenced
thereby;
and, for the purposes of this definition, any Security Certificate
authenticated
and delivered under Section 3.06 in exchange for or in lieu of a
mutilated,
destroyed, lost or stolen Security Certificate shall be deemed to
evidence the
same rights and obligations of the Holder as the mutilated,
destroyed, lost or
stolen Security Certificate.
"Purchase Contract," when used with respect to any Security, means
the
contract obligating the Company to sell and the Holder of such
Security to
purchase Common Stock on the terms and subject to the conditions
set forth in
Article Five hereof.
"Purchased Shares" has the meaning specified in Section
5.06(a)(6).
"Record Date" for the distributions and Contract Fees payable on
any
Payment Date means the _________________ or _________________
(whether or not a
Business Day), as the case may be, next preceding such Payment
Date.
"Reorganization Event" has the meaning specified in Section
5.06(b).
"Responsible Officer," when used with respect to the Agent, means
any
officer of the Agent assigned by the Agent to administer its
corporate trust
matters.
"Security" means the collective rights and obligations of a Holder
of a
Security Certificate in respect of Pledged Securities with a
principal amount or
liquidation preference equal to the Stated Amount, subject to the
Pledge
thereof, and a Purchase Contract.
"Security Certificate" means a certificate evidencing the rights
and
obligations of a Holder in respect of the number of Securities
specified on such
certificate.
"Security Register" and "Security Registrar" have the respective
meanings
specified in Section 3.05.
"Settlement Rate" has
the meaning specified in Section 5.01.
"Stated Amount" means $__________________.
"Termination Date" means the date, if any, on which a Termination
Event
occurs.
"Termination Event" means the occurrence of any of the following
events:
(i) at any time on or prior to the Final Settlement Date, a decree
or order by a
court having jurisdiction in the premises shall have been entered
adjudging the
Company a bankrupt or insolvent, or approving as properly filed a
petition
seeking reorganization of the Company under the United States
Bankruptcy Code or
any other similar applicable Federal or State law, and, unless such
decree or
order shall have been entered within 60 days prior to the Final
Settlement Date,
such decree or order shall have continued undischarged and unstayed
for a period
of 60 days; or (ii) a decree or order of a court having
jurisdiction in the
premises for the appointment of a receiver or liquidator or trustee
or assignee
in bankruptcy or insolvency of the Company or of its property, or
for the
winding up or liquidation of its affairs, shall have been entered,
and, unless
such decree or order shall have been entered within 60 days prior
to the Final
Settlement Date, such decree or order shall have continued
undischarged and
unstayed for a period of 60 days; or (iii) at any time on or prior
to the Final
Settlement Date the Company shall institute proceedings to be
adjudicated a
bankrupt, or shall consent to the filing of a bankruptcy proceeding
against it,
or shall file a petition or answer or consent seeking
reorganization under the
United States Bankruptcy Code or any other similar applicable
Federal or State
law, or shall consent to the filing of any such petition, or shall
consent to
the appointment of a receiver or liquidator or trustee or assignee
in bankruptcy
or insolvency of it or of its property, or shall make an assignment
for the
benefit of creditors, or shall admit in writing its inability to
pay its debts
generally as they become due.
"Threshold Appreciation Price" has the meaning specified in Section
5.01.
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"TIA" means the Trust Indenture Act of 1939, as amended, or any
successor
statute.
"Trading Day" has the meaning specified in Section 5.01.
"Underwriting Agreement" means the Underwriting Agreement dated
______________, 200_, between the Company and
_____________________, as
representative of the several Underwriters named therein.
"Vice President" means any vice president, whether or not
designated by a
number or a word or words added before or after the title "vice
president."
Section 1.02. Compliance Certificates and Opinions. Except as
otherwise
expressly provided by this Agreement, upon any application or
request by the
Company to the Agent to take any action under any provision of this
Agreement,
the Company shall furnish to the Agent an Officer's Certificate
stating that all
conditions precedent, if any, provided for in this Agreement
relating to the
proposed action have been complied with and an Opinion of Counsel
stating that,
in the opinion of such counsel, all such conditions precedent, if
any, have been
complied with, except that in the case of any such application or
request as to
which the furnishing of such documents is specifically required by
any provision
of this Agreement relating to such particular application or
request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or
covenant provided for in this Agreement shall include:
(1) a statement that each individual signing such certificate
or
opinion has read such covenant or condition and the definitions
herein
relating thereto;
(2) a brief
statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has
made
such examination or investigation as is necessary to enable him
to
express an informed opinion as to whether or not such covenant or
condition
has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual,
such
condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Agent. In any case
where
several matters are required to be certified by, or covered by an
opinion of,
any specified Person, it is not necessary that all such matters be
certified by,
or covered by the opinion of, only one such Person, or that they be
so certified
or covered by only one document, but one such Person may certify or
give an
opinion with respect to some matters and one or more other such
Persons as to
other matters, and any such Person may certify or give an opinion
as to such
matters in one or several documents.
Any
certificate or opinion of an officer of the Company may be
based,
insofar as it relates to legal matters, upon a certificate or
opinion of, or
representations by, counsel, unless such officer knows, or in the
exercise of
reasonable care should know, that the certificate or opinion or
representations
with respect to the matters upon which his certificate or opinion
is based are
erroneous. Any such certificate, or Opinion of Counsel may be
based, insofar as
it relates to factual matters, upon a certificate or opinion of,
or
representations by, an officer or officers of the Company stating
that the
information with respect to such factual matters is in the
possession of the
Company unless such counsel knows, or in the exercise of reasonable
care should
know, that the certificate or opinion or representations with
respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more
applications, requests, consents, certificates, statements,
opinions or other
instruments under this Agreement, they may, but need not, be
consolidated and
form one instrument.
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Section 1.04. Acts of Holders; Record Dates. (a) Any request,
demand,
authorization, direction, notice, consent, waiver or other action
provided by
this Agreement to be given or taken, by Holders may be embodied in
and evidenced
by one or more instruments of substantially similar tenor signed by
such Holders
in person or by agent duly appointed in writing; and, except as
herein otherwise
expressly provided, such action shall become effective when such
instrument or
instruments are delivered to the Agent and, where it is hereby
expressly
required, to the Company. Such instrument or instruments (and the
action
embodied therein and evidenced thereby) are herein sometimes
referred to as the
"Act" of the Holders signing such instrument or instruments. Proof
of execution
of any such instrument or of a writing appointing any such agent
shall be
sufficient for any purpose of this Agreement and (subject to
Section 7.01)
conclusive in favor of the Agent and the Company, if made in the
manner provided
in this Section.
(b)
The fact and date of the execution by any Person of any such
instrument
or writing may be proved by the affidavit of a witness of such
execution or by a
certificate of a notary public or other officer authorized by law
to take
acknowledgments of deeds, certifying that the individual signing
such instrument
or writing acknowledged to him the execution thereof. Where such
execution is by
a signer acting in a capacity other than his individual capacity,
such
certificate or affidavit shall also constitute sufficient proof of
his
authority. The fact and date of the execution of any such
instrument or writing,
or the authority of the Person executing the same, may also be
proved in any
other manner which the Agent deems sufficient.
(c)
The ownership of Securities shall be proved by the Security
Register.
(d)
Any request, demand, authorization, direction, notice, consent,
waiver
or other Act of the Holder of any Security shall bind every future
Holder of the
same Security and the Holder of every Security Certificate
evidencing such
Security issued upon the registration of transfer thereof or in
exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to
be done by the Agent or the Company in reliance thereon, whether or
not notation
of such action is made upon such Security Certificate.
(e)
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give,
make or take
any request, demand, authorization, direction, notice, consent,
waiver or other
action provided or permitted by this Agreement to be given, made or
taken by
Holders of Securities. If any record date is set pursuant to this
paragraph, the
Holders of Outstanding Securities on such record date, and no other
Holders,
shall be entitled to take the relevant action, whether or not such
Holders
remain Holders after such record date; provided that no such action
shall be
effective hereunder unless taken on or prior to the applicable
Expiration Date
by Holders of the requisite number of Outstanding Securities on
such record
date. Nothing in this paragraph shall be construed to prevent the
Company from
setting a new record date for any action for which a record date
has previously
been set pursuant to this paragraph (whereupon the record date
previously set
shall automatically and with no action by any Person be canceled
and of no
effect), and nothing in this paragraph shall be construed to render
ineffective
any action taken by Holders of the requisite number of Outstanding
securities on
the date such action is taken. Promptly after any record date is
set pursuant to
this paragraph, the Company, at its own expense, shall cause notice
of such
record date, the proposed action by Holders and the applicable
Expiration Date
to be given to the Agent in writing and to each Holder of
Securities in the
manner set forth in Section 1.06.
With respect to any record date set pursuant to this Section, the
Company may
designate any date as the "Expiration Date" and from time to time
may change the
Expiration Date to any earlier or later day; provided that no such
change shall
be effective unless notice of the proposed new Expiration Date is
given to the
Agent in writing, and to each Holder of Securities in the manner
set forth in
Section 1.06, on or prior to the existing Expiration Date. If an
Expiration Date
is not designated with respect to any record date set pursuant to
this Section,
the Company shall be deemed to have initially designated the 180th
day after
such record date as the Expiration Date with respect thereto,
subject to its
right to change the Expiration Date as provided in this
paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later
than the 180th
day after the applicable record date.
Section 1.05. Notices, etc., to Agent and the Company. Any request,
demand,
authorization, direction, notice, consent, waiver or Act of Holders
or other
document provided or permitted by this Agreement to be made upon,
given or
furnished to, or filed with,
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(1) the Agent by any Holder or by the Company shall be sufficient
for
every purpose hereunder (unless otherwise herein expressly
provided) if
made, given, furnished or filed in writing and personally delivered
or
mailed, first class postage prepaid, to the Agent at
______________________, Attention: Stock Transfer Department, or at
any
other address previously furnished in writing by the Agent to the
Holders
and
the Company, or
(2) the Company by the Agent or by any Holder shall be sufficient
for
every purpose hereunder (unless otherwise herein expressly
provided) if
made, given, furnished or filed in writing and personally delivered
or
mailed, first-class postage prepaid, to the Company at 5900
Princess Garden
Parkway, 7th Floor, Lanham, MD 20706-2969, Attention: Linda J.
Eckard
Vilardo, or at any other address previously furnished in writing to
the
Agent by the Company.
Section 1.06. Notice to Holders; Waiver. Where this Agreement
provides for
notice to Holders of any event, such notice shall be sufficiently
given (unless
otherwise herein expressly provided) if in writing and mailed,
first class
postage prepaid, to each Holder affected by such event, at his
address as it
appears in the Security Register, not later than the latest date,
and not
earlier than the earliest date, prescribed for the giving of such
notice. In any
case where notice to Holders is given by mail, neither the failure
to mail such
notice, nor any defect in any notice so mailed to any particular
Holder shall
affect the sufficiency of such notice with respect to other
Holders.
Where this Agreement provides for notice in any manner, such notice
may be
waived in writing by the Person entitled to receive such notice,
either before
or after the event, and such waiver shall be the equivalent of such
notice.
Waivers of notice by Holders shall be filed with the Agent, but
such filing
shall not be a condition precedent to the validity of any action
taken in
reliance upon such waiver.
In
case by reason of the suspension of regular mail service or by
reason of
any other cause it shall be impracticable to give such notice by
mail, then such
notification as shall be made with the approval of the Agent shall
constitute a
sufficient notification for every purpose hereunder.
Section 1.07. Effect of Headings and Table of Contents. The Article
and
Section headings herein and the Table of Contents are for
convenience only and
shall not affect the construction hereof.
Section 1.08. Successors and Assigns. All covenants and agreements
in this
Agreement by the Company shall bind its successors and assigns,
whether so
expressed or not.
Section 1.09. Separability Clause. In case any provision in this
Agreement
or in the Securities shall be invalid, illegal or unenforceable,
the validity,
legality and enforceability of the remaining provisions hereof and
thereof shall
not in any way be affected or impaired thereby.
Section 1.10. Benefits of Agreement. Nothing in this Agreement or
in the
Securities, express or implied, shall give to any Person, other
than the parties
hereto and their successors hereunder and the Holders, any benefits
or any legal
or equitable right, remedy or claim under this Agreement. The
Holders from time
to time shall be beneficiaries of this Agreement and shall be bound
by all of
the terms and conditions hereof and of the securities evidenced by
their
Security Certificates by their acceptance of delivery thereof.
Section 1.11. Governing Law. This Agreement and the Securities
shall be
governed by and construed in accordance with the laws of the State
of New York.
Section 1.12. Legal Holidays. In any case where any Payment Date,
any Early
Settlement Date or the Final Settlement Date shall not be a
Business Day, then
(notwithstanding any other provision of this Agreement or of the
Securities)
payment in respect of distributions on Pledged Securities or
Contract Fees shall
not be made, Purchase Contracts shall not be performed and Early
Settlement
shall not be effected on such date, but such payments shall be
made, or the
Purchase Contracts shall be performed or Early Settlement effected,
as
applicable, on the next succeeding Business Day with the same force
and effect
as if made on such Payment Date, Early Settlement Date or Final
Settlement Date,
as the case may be; provided, that no interest shall accrue or be
payable by the
Company or any Holder
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for the period from and after any such Payment Date, Early
Settlement Date or
Final Settlement Date, as the case may be.
Section 1.13. Counterparts. This Agreement may be executed in any
number of
counterparts, each of which, when so executed, shall be deemed an
original, but
all such counterparts shall together constitute one and the same
instrument.
Section 1.14. Inspection of Agreement. A copy of this Agreement
shall be
available at all reasonable times at the Corporate Trust Office for
inspection
by any Holder.
ARTICLE TWO
SECURITY CERTIFICATE FORMS
Section 2.01. Forms of Security Certificates Generally. The
Security
Certificates (including the form of Purchase Contracts forming part
of the
Securities evidenced thereby) shall be in substantially the form
set forth in
Exhibit A hereto, with such letters, numbers or other marks of
identification or
designation and such legends or endorsements printed, lithographed
or engraved
thereon as may be required by the rules of any securities exchange
on which the
Securities are listed or Depositary therefor, or as may,
consistently herewith,
be determined by the officers of the Company executing such
Security
Certificates, as evidenced by their execution of the Security
Certificates.
The
definitive Security Certificates shall be printed, lithographed
or
engraved on steel engraved borders or may be produced in any other
manner, all
as determined by the officers of the Company executing the
Security
Certificates, consistent with the provisions of this Agreement, as
evidenced by
their execution thereof.
Every Global Security Certificate authenticated, executed on behalf
of the
Holders and delivered hereunder shall bear a legend in
substantially the
following form:
THIS SECURITY CERTIFICATE IS A GLOBAL SECURITY CERTIFICATE WITHIN
THE
MEANING OF THE PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO
AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS
SECURITY CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A
SECURITY CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS
SECURITY
CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF
ANY
PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF. EXCEPT IN
THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT
AGREEMENT.
Section 2.02. Form of
Agent's Certificate of Authentication. The form of
the Agent's certificate of authentication of the Securities shall
be in
substantially the form set forth on the form of the Security
Certificates.
ARTICLE THREE
THE SECURITIES
Section 3.01. Title and Terms; Denominations. The aggregate number
of
Securities evidenced by Security Certificates authenticated,
executed on behalf
of the Holders and delivered hereunder is limited to
_______________ (subject to
increase up to a maximum of _________________ to the extent the
overallotment
option of the underwriters under the Underwriting Agreement is
exercised),
except for Security Certificates authenticated, executed and
delivered upon
registration of transfer of, in exchange for, or in lieu of, other
Security
Certificates pursuant to Section 3.04, 3.05, 3.06, 5.09 or
8.05.
The
Security Certificates shall be issuable only in registered form
and
only in denominations of a single Security and any integral
multiple thereof.
Section 3.02. Rights and Obligations Evidenced by the Security
Certificates. Each Security Certificate shall evidence the number
of Securities
specified therein, with each such Security representing the
ownership by the
Holder thereof of Pledged Securities with a principal amount or
liquidation
preference equal to the stated Amount, subject to
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the Pledge of such Pledged Securities by such Holder pursuant to
the Pledge
Agreement, and the rights and obligations of the Holder under one
Purchase
Contract. Prior to the purchase, if any, of shares of Common Stock
under the
Purchase Contracts, the Securities shall not entitle the Holders to
any of the
rights of a holder of shares of Common Stock, including, without
limitation, the
right to vote or receive any dividends or other payments or to
consent or to
receive notice as stockholders in respect of the meetings of
stockholders or for
the election of directors of the Company or for any other matter,
or any other
rights whatsoever as stockholders of the Company, except to the
extent otherwise
expressly provided in this Agreement.
Section 3.03. Execution, Authentication, Delivery and Dating. Upon
the
execution and delivery of this Agreement, and at any time and from
time to time
thereafter, the Company may deliver Security Certificates executed
by the
Company to the Agent for authentication, execution on behalf of the
Holders and
delivery, together with its Issuer Order for authentication of such
Security
Certificates, and the Agent in accordance with such issuer Order
shall
authenticate, execute on behalf of the Holder and deliver such
Security
Certificates.
The
Security Certificates shall be executed on behalf of the Company by
its
Chairperson of the Board, its Vice Chairperson of the Board, its
President or
one of its Vice Presidents, under its corporate seal reproduced
thereon attested
by its Secretary or one of its Assistant Secretaries. The signature
of any of
these officers on the Security Certificates may be manual or
facsimile.
Security Certificates bearing the manual or facsimile signatures
of
individuals who were at any time the proper officers of the Company
shall bind
the Company, notwithstanding that such individuals or any of them
have ceased to
hold such offices prior to the authentication and delivery of such
Security
Certificates or did not hold such offices at the date of such
Security
Certificates.
No
Purchase Contract underlying a Security evidenced by a Security
Certificate shall be valid until such Security Certificate has been
executed on
behalf of the Holder by the manual signature of an authorized
signatory of the
Agent, as such Holder's attorney-in-fact. Such signature by an
authorized
signatory of the Agent shall be conclusive evidence that the Holder
of such
Security Certificate has entered into the Purchase Contracts
underlying the
Securities evidenced by such Security Certificate.
Each
Security Certificate shall be dated the date of its
authentication.
No
Security Certificate shall be entitled to any benefit under
this
Agreement or be valid or obligatory for any purpose unless there
appears on such
Security Certificate a certificate of authentication substantially
in the form
provided for herein executed by an authorized signatory of the
Agent by manual
signature, and such certificate upon any Security Certificate shall
be
conclusive evidence, and the only evidence, that such Security
Certificate has
been duly authenticated and delivered hereunder.
Section 3.04. Temporary Security Certificates. Pending the
preparation of
definitive Security Certificates, the Company shall execute and
deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the
Holders, and
deliver, in lieu of such definitive Security Certificates,
temporary Security
Certificates which are in substantially the form set forth in
Exhibit A hereto,
with such letters, numbers or other marks of identification or
designation and
such legends or endorsements printed, lithographed or engraved
thereon as may be
required by the rules of any securities exchange on which the
Securities are
listed, or as may, consistently herewith, be determined by the
officers of the
Company executing such Security Certificates, as evidenced by their
execution of
the Security Certificates.
If
temporary Security Certificates are issued, the Company will
cause
definitive Security Certificates to be prepared without
unreasonable delay.
After the preparation of definitive Security Certificates, the
temporary
Security Certificates shall be exchangeable for definitive Security
Certificates
upon surrender of the temporary Security Certificates at the
Corporate Trust
Office, at the expense of the Company and without charge to the
Holder. Upon
surrender for cancellation of any one or more temporary Security
Certificates,
the Company shall execute and deliver to the Agent, and the Agent
shall
authenticate, execute on behalf of the Holder, and deliver in
exchange therefor,
one or more definitive Security Certificates of authorized
denominations and
evidencing a like number of Securities as the temporary Security
Certificate or
Security Certificates so surrendered. Until so exchanged, the
temporary Security
Certificates shall
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<PAGE>
in all respects evidence the same benefits and the same obligations
with respect
to the Securities evidenced thereby as definitive Security
Certificates.
Section 3.05. Registration; Registration of Transfer and Exchange.
The
Agent shall keep at the Corporate Trust Office a register (the
register
maintained in such office being herein referred to as the "Security
Register")
in which, subject to such reasonable regulations as it may
prescribe, the Agent
shall provide for the registration of Security Certificates and of
transfers of
Security Certificates (the Agent, in such capacity, the "Security
Registrar").
Upon
surrender for registration of transfer of any Security Certificate
at
the Corporate Trust Office, the Company shall execute and deliver
to the Agent,
and the Agent shall authenticate, execute on behalf of the
designated transferee
or transferees, and deliver, in the name of the designated
transferee or
transferees, one or more new Security Certificates of any
authorized
denominations and evidencing a like number of Securities.
At
the option of the Holder, Security Certificates may be exchanged
for
other Security Certificates, of any authorized denominations and
evidencing a
like number of Securities, upon surrender of the Security
Certificates to be
exchanged at the Corporate Trust Office. Whenever any Security
Certificates are
so surrendered for exchange, the Company shall execute and deliver
to the Agent,
and the Agent shall authenticate, execute on behalf of the Holder,
and deliver
the Security Certificates which the Holder making the exchange is
entitled to
receive.
All
Security Certificates issued upon any registration of transfer
or
exchange of a Security Certificate shall evidence the ownership of
the same
number of Securities and be entitled to the same benefits and
subject to the
same obligations, under this Agreement as the Securities evidenced
by the
Security Certificate surrendered upon such registration of transfer
or exchange.
Every Security Certificate presented or surrendered for
registration of
transfer or for exchange shall (if so required by the Agent) be
duly endorsed,
or be accompanied by a written instrument of transfer in form
satisfactory to
the Company and the Agent duly executed, by the Holder thereof or
his attorney
duly authorized in writing.
No
service charge shall be made for any registration of transfer
or
exchange of a Security Certificate, but the Company and the Agent
may require
payment from the Holder of a sum sufficient to cover any tax or
other
governmental charge that may be imposed in connection with any
registration of
transfer or exchange of Security Certificates, other than any
exchanges pursuant
to Sections 3.06 and 8.05 not involving any transfer.
Notwithstanding the
foregoing, the Company shall not be obligated to execute and
deliver to the
Agent, and the Agent shall not be obligated to authenticate,
execute on behalf
of the Holder and deliver any Security Certificate presented or
surrendered for
registration of transfer or for exchange on or after the Final
Settlement Date
or the Termination Date. In lieu of delivery of a new Security
Certificate, upon
satisfaction of the applicable conditions specified above in this
Section and
receipt of appropriate registration or transfer instructions from
such Holder,
the Agent shall (i) if the Final settlement Date has occurred,
deliver the
shares of Common Stock issuable in respect of the Purchase
Contracts forming a
part of the Securities evidenced by such Security Certificate, or
(ii) if a
Termination Event shall have occurred prior to the Final Settlement
Date,
transfer the principal amount or liquidation amount, as the case
may be, of the
Pledged Securities evidenced thereby, in each case subject to the
applicable
conditions and in accordance with the applicable provisions of
Article Five
hereof.
The
provisions of Clauses (1), (2), (3) and (4) below shall apply only
to
Global Security Certificates:
(1) Each Global Security Certificate authenticated and executed
on
behalf of the Holders under this Agreement shall be registered in
the name
of
the Depositary designated for such Global Security Certificate or
a
nominee thereof and delivered to such Depositary or a nominee
thereof or
custodian therefor, an each such Global Security Certificate
shall
constitute a single Security Certificate for all purposes of
this
Agreement.
(2) Notwithstanding any other provision in this Agreement, no
Global
Security Certificate may be exchanged in whole or in part of
Security
Certificates registered, and no transfer for a Global Security
Certificate
in
whole or in part may be registered, in the name of any Person other
than
the
Depositary for such Global Security Certificate or a nominee
thereof
unless (A) such Depositary (i) has notified the Company that it
is
unwilling or unable to
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<PAGE>
continue as Depositary for
such Global Security Certificate or (ii) has
ceased to be a clearing agency registered under the Exchange Act or
(b)
there shall have occurred and be continuing a default by the
Company in
respect to its obligations under one or more Purchase
Contracts.
(3) Subject to Clause (2) above, any exchange of a Global
Security
Certificate for other Security Certificates may be made in whole or
in
part, and all Security Certificates issued in exchange for a
Global
Security Certificate or any portion thereof shall be registered in
such
names as the Depositary for such Global Security Certificate shall
direct.
(4) Every Security Certificate authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a
Global
Security Certificate or any portion thereof, whether pursuant to
this
Section, Section 3.04, 3.06, 5.09 or 8.05 or otherwise, shall
be
authenticated, executed on behalf of the Holders and delivered in
the form
of,
and shall be, a Global Security Certificate, unless such
Security
Certificate is registered in the name of a Person other than the
Depositary
for
such Global Security Certificate or a nominee thereof.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Security
Certificates.
If any mutilated Security Certificate is surrendered to the Agent,
the Company
shall execute and deliver to the Agent, and the Agent shall
authenticate,
execute on behalf of the Holder, and deliver in exchange therefor,
a new
Security Certificate, evidencing the same number of Securities and
bearing a
number not contemporaneously outstanding.
If
there shall be delivered to the Company and the Agent (i) evidence
to
their satisfaction of the destruction, loss or theft of any
Security
Certificate, and (ii) such security or indemnity as may be required
by them to
save each of them and any agent of any of them harmless, then, in
the absence of
notice to the Company or the Agent that such Security Certificate
has been
acquired by a bona fide purchaser, the Company shall execute and
deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the
Holder, and
deliver to the Holder, in lieu of any such destroyed, lost or
stolen Security
Certificate, a new Security Certificate, evidencing the same number
of
Securities and bearing a number not contemporaneously
outstanding.
Notwithstanding the foregoing, the Company shall not be obligated
to
execute and deliver to the Agent, and the Agent shall not be
obligated to
authenticate, execute on behalf of the Holder, and deliver to the
Holder, a
Security Certificate on or after the Final Settlement Date or the
Termination
Date. In lieu of delivery of a new Security Certificate, upon
satisfaction of
the applicable conditions specified above in this Section and
receipt of
appropriate registration or transfer instructions from such Holder,
the Agent
shall (i) if the Final Settlement Date has occurred, deliver the
shares of
Common Stock issuable in respect of the Purchase Contracts forming
a part of the
Securities evidenced by such Security Certificate, or (ii) if a
Termination
Event shall have occurred prior to the Final Settlement Date,
transfer the
principal amount of the Pledged Securities evidenced thereby, in
each case
subject to the applicable conditions and in accordance with the
applicable
provisions of Article Five hereof.
Upon
the issuance of any new Security Certificate under this Section,
the
Company and the Agent may require the payment by the Holder of a
sum sufficient
to cover any tax or other governmental charge that may be imposed
in relation
thereto and any other expenses (including the fees and expenses of
the Agent)
connected therewith.
Every new Security Certificate issued pursuant to this Section in
lieu of
any destroyed, lost or stolen Security Certificate shall constitute
an original
additional contractual obligation of the Company and of the Holder,
whether or
not the destroyed, lost or stolen Security Certificate shall be at
any time
enforceable by anyone, and shall be entitled to all the benefits
and be subject
to all the obligations of this Agreement equally and
proportionately with any
and all other Security Certificates delivered hereunder.
The
provisions of this Section are exclusive and shall preclude (to
the
extent lawful) all other rights and remedies with respect to the
replacement or
settlement of mutilated, destroyed, lost or stolen Security
Certificates.
Section 3.07. Persons Deemed Owners. Prior to due presentment of a
Security
Certificate for registration of transfer, the Company and the
Agent, and any
agent of the Company or the Agent, may treat the Person in whose
name such
Security Certificate is registered as the owner of the Securities
evidenced
thereby, for the purpose of receiving
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<PAGE>
payments of distributions on the Pledged Securities, receiving
payments of
Contract Fees, performance of the Purchase Contracts and for all
other purposes
whatsoever, whether or not the payment of distributions on the
Pledged
Securities or any Contract Fee payable in respect of the Purchase
Contracts
constituting a part of the Securities evidenced thereby shall be
overdue and
notwithstanding any notice to the contrary, and neither the Company
nor the
Agent, nor any agent or the Company or the Agent, shall be affected
by notice to
the contrary.
Notwithstanding the foregoing, with respect to any Global
Security
Certificate, nothing herein shall prevent the Company, the Agent or
any agent of
the Company or the Agent, from giving effect to any written
certification, proxy
or other authorization furnished by any Depositary (or its
nominee), as a
Holder, with respect to such Global Security Certificate or impair,
as between
such Depositary and owners of beneficial interests in such Global
Security
Certificate, the operation of customary practices governing the
exercise of
rights of such Depositary (or its nominee) as Holder of such Global
Security
Certificate.
Section 3.08. Cancellation. All Security Certificates surrendered
for
delivery of shares of Common Stock on or after the Final Settlement
Date,
transfer of Pledged Securities after the occurrence of a
Termination Event or
pursuant to an Early Settlement or registration of transfer or
exchange shall,
if surrendered to any Person other than the Agent, be delivered to
the Agent
and, if not already cancelled, shall be promptly cancelled by it.
The Company
may at any time deliver to the Agent for cancellation any Security
Certificates
previously authenticated, executed and delivered hereunder which
the Company may
have acquired in any manner whatsoever, and all Security
Certificates so
delivered shall, upon Issuer Order, be promptly cancelled by the
Agent. No
Security Certificates shall be authenticated, executed on behalf of
the Holder
and delivered in lieu of or in exchange for any Security
Certificates cancelled
as provided in this Section, except as expressly permitted by this
Agreement,
All cancelled Security Certificates held by the Agent shall be
disposed of as
directed by Issuer Order.
If
the Company or any Affiliate of the Company shall acquire any
Security
Certificate, such acquisition shall not operate as a cancellation
of such
Security Certificate unless and until such Security Certificate is
delivered to
the Agent cancelled or for cancellation.
Section 3.09. Securities Not Separable. Notwithstanding anything
contained
herein or in the Security Certificates to the contrary, for so long
as the
Purchase Contract underlying a Security remains in effect such
Security shall
not be separable into its constituent parts, and the rights and
obligations of
the Holder of such Security in respect of the Pledged Securities
and Purchase
Contracts constituting such Security may be acquired, and may be
transferred and
exchanged, only as a Security. Other than a Security Certificate
evidencing a
Security, no Holder of a Security, or any transferee thereof, shall
be entitled
to receive a certificate evidencing the ownership of Pledged
Securities or the
rights and obligations of the Holder and the Company under a
Purchase Contract
for so long as the Purchase Contract underlying the Security
remains in effect.
ARTICLE FOUR
THE PLEDGED SECURITIES
Section 4.01. Payment of Distributions; Rights to Distributions
Preserved.
Distributions on any Pledged Security which is paid on any Payment
Date shall,
subject to receipt thereof by the Agent from the Collateral Agent
as provided by
the terms of the Pledge Agreement, be paid to the Person in whose
name the
Security Certificate (or one or more Predecessor Security
Certificates) of which
such Pledged Security is a part is registered at the close of
business on the
Record Date next preceding such Payment Date.
Each
Security Certificate evidencing Pledged Securities delivered
under
this Agreement upon registration of transfer of or in exchange for
or in lieu of
any other Security Certificate shall carry the rights to
distributions accrued
and unpaid, and to accrue, which were carried by the Pledged
Securities
underlying such other Security Certificate.
In
the case of any Security with respect to which Early Settlement of
the
underlying Purchase Contract is effected on an Early Settlement
Date after any
Record Date and on or prior to the next succeeding Payment Date,
distributions
on the Pledged Securities underlying such Security otherwise
payable on such
Payment Date shall be payable on such
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Payment Date notwithstanding such Early Settlement, and such
distributions shall
subject to receipt thereof by the Agent, be paid to the Person in
whose name the
Security Certificate (or one or more Predecessor Security
Certificates) is
registered at the close of business on the Record Date. Except as
otherwise
expressly provided in the immediately preceding sentence, in the
case of any
Security with respect to which Early Settlement of the underlying
Purchase
Contract is effected on an Early Settlement Date, distributions on
the related
Pledged Securities that would otherwise be payable after the Early
Settlement
Date shall not be payable hereunder to the Holder of such
Security.
Section 4.02. Transfer
of Pledged Securities Upon Occurrence of Termination
Event. Upon the occurrence of a Termination Event and the transfer
to the Agent
of the Pledged Securities underlying such Securities pursuant to
the terms of
the Pledge Agreement, the Agent shall request transfer instructions
with respect
to such Pledged Securities from each Holder of Securities by
written request
mailed to such Holder at his address as it appears in the Security
Register, in
respect of the Pledged Securities underlying the Security
Certificate held by
such Holder. Upon surrender to the Agent of a Security Certificate
with such
transfer instructions in proper form for transfer of the Pledged
Securities by
Federal Reserve BankWire, book entry transfer through the
facilities of the
Depositary Trust Company, or other appropriate procedure, the Agent
shall
transfer the Pledged Securities evidenced by such Security
Certificate to such
Holder in accordance with such instructions. If a Security
Certificate is not
duly surrendered to the Agent with appropriate transfer
instructions, the Agent
shall hold the Pledged Securities evidenced by such Security
Certificate as
custodian for the Holder of such Security Certificate.
Pledged Securities shall be transferred only in denominations of
$_________
and integral multiples thereof. As promptly as practicable
following the
occurrence of a Termination Event, the Agent shall determine the
excess of (i)
the aggregate principal amount or liquidation preference, as the
case may be, of
Pledged Securities underlying the Outstanding Securities over (ii)
the aggregate
principal amount or liquidation preference, as the case may be, of
Pledged
Securities in denominations of $________ and integral multiples
thereof
transferable to Holders of record on the date of such Termination
Event (such
excess being herein referred to as the "Excess Pledged
Securities"). As soon as
practicable after transfer to the Agent of the Pledged Securities
underlying the
Outstanding Securities as provided in the Pledge Agreement, the
Agent shall sell
the Excess Pledged Securities to or through one or more registered
broker
dealers at then prevailing prices. The Agent shall deduct from the
proceeds of
such sales all commissions and other out-of-pocket transaction
costs incurred in
connection with such sales of Excess Pledged Securities and, until
the net
proceeds of such sale or sales have been distributed to Holders of
the
Securities, the Agent shall hold such proceeds in trust for the
Holders of
Securities. Each Holder shall be entitled to receive a portion, if
any, of such
net proceeds in lieu of Pledged Securities with a principal amount
of less than
$____ determined by multiplying the aggregate amount of such net
proceeds by a
fraction, the numerator of which is the fraction of $_____ in
principal amount
of Pledged Securities to which such Holder would otherwise be
entitled (after
taking into account all Securities then held by such Holder) and
the denominator
of which is the aggregate principal amount of Excess Pledged
Securities.
ARTICLE FIVE
THE PURCHASE CONTRACTS
Section 5.01. Purchase of Shares of Common Stock. Each Purchase
Contract
shall obligate the Holder of the related Security to purchase, and
the Company
to sell, on the Final Settlement Date at a price equal to the
Stated Amount, a
number of shares of Common Stock equal to the Settlement Rate,
unless, on or
prior to the Final Settlement Date, there shall have occurred a
Termination
Event or an Early Settlement with respect to the Security of which
such Purchase
Contract is a part. The "Settlement Rate" is equal to (a) if the
Applicable
Market Value (as defined below) is greater than $_____ (the
"Threshold
Appreciation Price"), ______ of a share of Common Stock per
purchase Contract,
(b) if the Applicable Market Value is less than or equal to the
Threshold
Appreciation Price but is greater than the Stated Amount, a
fractional share of
Common Stock per Purchase Contract equal to the Stated Amount
divided by the
Applicable Market Value (rounded upward or downward to the nearest
1/10,000th of
a share) and (c) if the Applicable Market Value is less than or
equal to the
Stated Amount, one share of Common Stock per Purchase Contract, in
each case
subject to adjustment as provided in Section 5.06. As provided in
Section 5.10,
no fractional shares of Common Stock will be issued upon settlement
of Purchase
Contracts.
The
"Applicable Market Value" means the average of the Closing Prices
per
share of Common Stock on each of the twenty consecutive Trading
Days ending on
the last Trading Day immediately preceding the Final Settlement
Date.
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The "Closing Price" of the Common Stock on any date of
determination means the
closing sale price (or, if no closing price is reported, the last
reported sale
price) of the Common Stock on the New York Stock Exchange (the
"NYSE") on such
date or, if the Common Stock is not listed for trading on the NYSE
on any such
date, as reported in the composite transactions for the principal
United States
securities exchange on which the Common Stock is so listed, or if
the Common
Stock is not so listed on a United States national or regional
securities
exchange, as reported by The Nasdaq Stock Market, or, if the Common
Stock is not
so reported, the last quoted bid price for the Common Stock in
the
over-the-counter market as reported by the National Quotation
Bureau or similar
organization, or, if such bid price is not available, the market
value of the
Common Stock on such date as determined by a nationally recognized
independent
investment banking firm retained for this purpose by the Company. A
"Trading
Day" means a day on which the Common Stock (A) is not suspended
from trading on
any national or regional securities exchange or association or
over-the-counter
market at the close of business and (B) has traded at least once on
the national
or regional securities exchange or association or over-the-counter
market that
is the primary market for the trading of the Common Stock.
Each
Holder of a Security Certificate evidencing Securities, by his
acceptance thereof, irrevocably authorizes the Agent to enter into
and perform
the related Purchase Contracts on his behalf as his
attorney-in-fact, agrees to
be bound by the terms and provisions thereof, covenants and agrees
to perform
his obligations under such Purchase Contracts, consents to the
provisions
hereof, irrevocably authorizes the Agent as his attorney-in-fact to
enter into
and perform the Pledge Agreement on his behalf as his
attorney-in-fact, and
consents to and agrees to be bound by the Pledge of the Pledged
Securities
underlying such Security Certificate pursuant to the Pledge
Agreement. Each
Holder of a Security, by his acceptance thereof, further
irrevocably covenants
and agrees that, to the extent and in the manner provided in
Section 5.04 and
the Pledge Agreement, but subject to the terms thereof, payments in
respect of
principal or redemption price of the Pledged Securities on the
Final Settlement
Date shall be paid by the collateral Agent to the Company in
satisfaction of
such Holder's obligations under such Purchase Contract and such
Holder shall
acquire no right, title or interest in such payments.
Upon
registration of transfer of a Security Certificate evidencing
Purchase
Contracts, the transferee shall be bound (without the necessity of
any other
action on the part of such transferee), under the terms of this
Agreement, the
Purchase Contracts evidenced thereby and the Pledge Agreement and
the transferor
shall be released from the obligations under the Purchase Contracts
evidenced by
the Security Certificates so transferred. The Company covenants and
agrees, and
each Holder of a Security Certificate, by his acceptance thereof,
likewise
covenants and agrees, to be bound by the provisions of this
paragraph.
Section 5.02. Contract Fees. Subject to Section 5.03, the Company
shall
pay, on each Payment Date, the Contract Fees payable in respect of
each Purchase
Contract to the Person in whose name the Security Certificate (or
one or more
Predecessor Security Certificates) evidencing such Purchase
Contract is
registered at the close of business on the Record Date next
preceding such
Payment Date. The Contract Fee will be payable at the office of the
Agent in the
City of ____________ maintained for that purpose or, at the option
of the
Company, by check mailed to the address of the Person entitled
thereto at such
address as it appears on the Security Register.
Each
Security Certificate delivered under this Agreement upon
registration
of transfer of or in exchange for or in lieu of any other Security
Certificate
shall carry the rights to Contract Fees accrued and unpaid, and to
accrue, which
were carried by the Purchase Contracts evidenced by such other
Security
Certificate.
In
the case of any Security with respect to which Early Settlement of
the
underlying Purchase Contract is effected on an Early Settlement
Date after any
Record Date and on or prior to the next succeeding Payment Date,
Contract Fees
otherwise payable on such Payment Date shall be payable on such
Payment Date
notwithstanding such Early Settlement, and such Contract Fees shall
be paid to
the Person in whose name the Security Certificate evidencing such
Security (or
one or more Predecessor Security Certificates) is registered at the
close of
business on such Record Date. Except as otherwise expressly
provided in the
immediately preceding sentence, in the case of any Security with
respect to
which Early Settlement of the underlying Purchase Contract is
effected on an
Early Settlement Date, Contract Fees that would otherwise be
payable after the
Early Settlement Date with respect to the Purchase Contract
underlying such
Security shall not be payable.
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<PAGE>
Section 5.03. Deferral of Payment Dates for Contract Fee. The
Company shall
have the right, at any time prior to the Final Settlement Date, to
defer the
payment of any or all of the Contract Fees otherwise payable on any
Payment
Date, but only if the Company shall give the Holders and the Agent
written
notice of its election to defer such payment (specifying the amount
to be
deferred) at least ten Business Days prior to the earlier of (i)
the next
succeeding Payment Date or (ii) the date the Company is required to
give notice
of the Record Date or Payment Date with respect to payment of such
Contract Fee
to the New York Stock Exchange or other applicable self-regulatory
organization
or to Holders of the Securities, but in any event not less than two
Business
Days prior to such Record Date. Any Contract Fees so deferred shall
bear
additional Contract Fees thereon at the rate of per annum set forth
in Appendix
_______ hereto (computed on the basis set forth in Appendix ___),
compounding on
each succeeding Payment Date, until paid in full. Deferred Contract
Fees (and
additional Contract Fees accrued thereon) shall be due on the next
succeeding
Payment Date except to the extent that payment is deferred pursuant
to this
Section. No Contract Fees may be deferred to a date that is after
the Final
Settlement Date or, with respect to any particular Purchase
Contract, Early
Settlement thereof.
Section 5.04. Payment of Purchase Price. The purchase price for the
shares
of Common Stock purchased pursuant to a Purchase Contract shall be
paid by
application of payments received by the Company on the Final
Settlement Date
from the Collateral Agent pursuant to the Pledge Agreement in
respect of the
principal or redemption price, as the case may be, of the Pledged
Securities
Pledged to secure the obligations of the relevant Holder under such
Purchase
Contract. Such application shall satisfy in full the obligations
under such
Purchase Contract of the Holder of the Security of which such
Purchase Contract
is a part.
The
Company shall not be obligated to issue any shares of Common Stock
in
respect of a Purchase Contract or deliver any certificates therefor
to the
Holder unless it shall have received payment in full of the
aggregate purchase
price for the shares of Common Stock to be purchased thereunder in
the manner
herein set forth.
Section 5.05. Issuance of Share of Common Stock. Unless a
Termination Event
shall have occurred on or prior to the Final Settlement Date, on
the Final
Settlement Date, upon its receipt of payment, in full of the
purchase price for
the shares of Common Stock purchased by the Holders pursuant to the
foregoing
provisions of this Article, and subject to Section 5.06(b), the
Company shall
deposit with the Agent, for the benefit of the Holders of the
Outstanding
Securities, one or more certificates representing the shares of
Common Stock
registered in the name of the Agent (or its nominee) as custodian
for the
Holders (such certificates for shares of Common Stock, together
with any
dividends or distributions with respect thereto, being hereinafter
referred to
as the "Final Settlement Fund") to which the Holders are entitled
hereunder.
Subject to the foregoing, upon surrender of a Security Certificate
to the Agent
on or after the Final Settlement Date, together with settlement
instructions
thereon duly completed and executed, the Holder of such Security
Certificate
shall be entitled to receive in exchange therefor a certificate
representing
that number of whole shares of Common Stock with such Holder is
entitled to
receive pursuant, to the provisions of this Article Five (after
taking into
account all Securities then held by such Holder) together with cash
in lieu of
fractional shares as provided in Section 5.10 and any dividends or
distributions
with respect to such shares constituting part of the Final
Settlement Fund, but
without any interest thereon, and the Security Certificate so
surrendered shall
forthwith be cancelled. Such shares shall be registered in the name
of the
Holder or the Holder's designee as specified in the settlement
instructions on
the Security Certificate.
If
any shares of Common Stock issued in respect of a Purchase Contract
are
to be registered to a Person other than the Person in whose name
the Security
Certificate evidencing such Purchase Contract is registered, no
such
registration shall be made unless the person requesting such
registration has
paid any transfer and other taxes required by reason of such
registration in a
name other than that of the registered Holder of the Security
Certificate
evidencing such Purchase Contractor has established to the
satisfaction of the
Company that such tax either has been paid or is not payable.
Section 5.06. Adjustment of Settlement Rate. (a) Adjustments for
Dividends,
Distributions, Stock Splits, Etc. (1) In case the Company shall pay
or make a
dividend or other distribution on any class of Common Stock of the
Company in
Common Stock, the Settlement Rate in effect at the opening of
business on the
day following the date fixed for the determination of stockholders
entitled to
receive such dividend or other distribution shall be increased by
dividing such
Settlement Rate by a fraction of which the numerator shall be the
number of
shares of Common Stock outstanding at the close of business on the
date fixed
for such determination and the denominator shall be the sum of such
number of
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<PAGE>
shares and the total number of shares constituting such dividend or
other
distribution, such increase to become effective immediately after
the opening of
business on the day following the date fixed for such
determination. For the
purposes of this paragraph (1), the number of shares of Common
Stock at any time
outstanding shall net include shares held in the treasury of the
Company but
shall include shares issuable in respect of scrip certificates
issued in lieu of
fractions of shares of Common Stock. The Company will not pay any
dividend or
make any distribution on shares of Common Stock held in the
treasury of the
Company.
(2) In case the Company shall issue rights, options or warrants to
all
holders of its Common Stock (not being available on an equivalent
basis to
Holders of the Securities upon settlement of the Purchase Contracts
underlying
such Securities) entitling them, for a period expiring within 45
days after the
record date for the determination of stockholders entitled to
receive such
rights, options or warrants, to subscribe for or purchase shares of
Common Stock
at a price per share less than the Current Market Price per share
of the Common
Stock on the date fixed for the determination of stockholders
entitled to
receive such rights, options or warrants (other than pursuant to a
dividend
reinvestment plan), the Settlement Rate in effect at the opening of
business on
the day following the date fixed for such determination shall be
increased by
dividing such Settlement Rate by a fraction of which the numerator
shall be the
number of shares of Common Stock outstanding at the close of
business on the
date fixed for such determination plus the number of shares of
Common Stock
which the aggregate of the offering price of the total number of
shares of
Common Stock so offered for subscription or purchase would purchase
at such
Current Market Price and the denominator shall be the number of
shares of Common
Stock outstanding at the close of business on the date fixed for
such
determination plus the number of shares of Common Stock so offered
for
subscription or purchase, such increase to become effective
immediately after
the opening of business on the day following the date fixed for
such
determination. For the purposes of this paragraph (2), the number
of shares of
Common Stock at any time outstanding shall not include shares held
in the
treasury of the Company but shall include shares issuable in
respect of scrip
certificates issued in lieu of fractions of shares of Common Stock.
The Company
shall not issue any such rights, options or warrants in respect of
shares of
Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be
subdivided
into a greater number of shares of Common Stock, the Settlement
Rate in effect
at the opening of business on the day following the day upon which
such
subdivision becomes effective shall be proportionately increased,
and,
conversely, in case outstanding shares of Common Stock shall each
be combined
into a smaller number of shares of Common Stock, the Settlement
Rate in effect
at the opening of business on the day following the day upon which
such
combination becomes effective shall be proportionately reduced,
such increase
or reduction, as the case may be, to become effective immediately
after the
opening of business on the day following the day upon which such
subdivision or
combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute
to
all holders of its Common Stock evidences of its indebtedness or
assets
(including securities, but excluding any rights or warrants
referred to in
paragraph (2) of this Section, any dividend or distribution paid
exclusively in
cash and any dividend or distribution refereed to in paragraph (1)
of this
Section), the Settlement Rate shall be adjusted so that the same
shall equal the
rate determined by dividing the Settlement Rate in effect
immediately prior to
the close of business on the date fixed for the determination or
stockholders
entitled to receive such distribution by a fraction of which the
numerator shall
be the Current Market Price per share of the Common Stock on
